Osgoode Hall Law Journal
Volume 39, Number 2/3 (Summer/Fall 2001)
Mandatory Minimum Sentencing in Canada
Article 12
Distorting the Prosecution Process: Informers,
Mandatory Minimum Sentences, and Wrongful
Convictions
Dianne L. Martin
Osgoode Hall Law School of York University
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Distorting the Prosecution Process: Informers, Mandatory Minimum
Sentences, and Wrongful Convictions
Abstract
As the use of mandatory minimum sentences becomes more common in Canada, it is important to consider a
range of potential consequences that are neither intended nor anticipated. This article considers the
implications of mandatory minimum sentences in contributing to wrongful convictions. It considers the
impact of these sentences on two significant processes in the criminal justice system, plea bargaining and the
development of informers, and argues that both processes are vulnerable to distortions. These distortions,
which include the wrongful conviction of innocent people, can be exacerbated by the threat of mandatory
minimum prison sentences. In the case of plea bargaining, innocent people may plead guilty to lesser offences
to avoid mandatory minima. In regard to the development of informers, the article concentrates primarily on
the role of mandatory minimum sentences in the matter of “jailhouse informer” witnesses who have been
associated with a significant number of wrongful convictions. Experience in the United States, where these
sentences are most widely used, informs the analysis which is nonetheless focused on the Canadian criminal
justice system.
This special issue article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol39/iss2/12
DISTORTING THE PROSECUTION
PROCESS: INFORMERS,
MANDATORY MINIMUM
SENTENCES, AND WRONGFUL
CONVICTIONS
BY DiAnNL.Nh MAgnr
Comm lIts pu-m WtitP~lts cbb;Mtwc =a
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I.
INTRODUCTION ...........................
II.
CAUSES
s
rcvpmrtct0f"tat&4i,
dettic frtqgcmms
................... 514
OFWRONGFL CONVICTION .......................... 519
Asociam
t Professor, Osood. Hall Lw School.
Vcw Uvm.crtAy
OSGOODE HALL LAW JOURNAL
(VOL. 39, NOS. 2 & 3
III.
INFORMERS, GUILTY PLEAS, AND WRONGFUL CONVICTIONS .. 521
A. Developing Informers ...........................................
521
B. JailhouseInformers ............................................
524
C. Wrongful Guilty Pleas ..........................................
526
IV.
CONCLUSION ..................................................
I.
INTRODUCTION
527
Mandatory minimum sentences are attractive to many interests.
They are politically attractive, as Anthony Doob and Carla Cesaroni amply
demonstrate.! As experience in the United States particularly illustrates,
these sentences serve the operational interests of the prosecution process
in a number of ways. Most well-known is the role that these sentences serve
in plea bargaining, when accused persons are faced with a choice between
a certain, often lengthy, prison sentence if they are convicted of an offence
that carries a mandatory minimum sentence of imprisonment after a
contested trial, and a guilty plea to a lesser offence that does not. The
opportunity to avoid the mandatory minimum sentence is a clear
inducement to plead guilty. 2 The dark side of this choice is that some of
those pleas of guilt are taken from the factually innocent.3
A related function, the use of the threat of the mandatory minimum
sentence as a tool in the development of informers, and the relationship
between informer evidence and wrongful convictions, is the focus of this
article. Informer evidence generally (and "jail house informer"4 evidence
in particular), has been implicated in wrongful convictions throughout the
A.N. Doob & C. Cesaroni, "The Political Attractiveness of Mandatory Minimum Sentences"
(2001) 39 Osgoode Hall L.J. 287.
2 In a wide-ranging review, Stephanos Bibas discusses the increasing use of mandatory minimum
sentences and equally rigid sentencing guidelines and the costs of due process and justice in the United
States that have been attributed to them. S. Bibas, "Judicial Fact-Finding and Sentence Enhancements
in a World of Guilty Pleas" (2001) 110 Yale L.J. 1097.
3 S.H. Pillsbury, "Even the Innocent Can Be Coerced Into Pleading Guilty: The Rampart Scandal
Spotlights the Shameful Legacy of Plea Bargaining in American Law" The Los Angeles Times (28
November 1999) M5; R.A. Leo, "False Confessions: Causes, Consequences, and Solutions" in S.
Westervelt & J. Humphrey, eds., Wrongly Convicted: When JusticeFails(New Jersey: Rutgers University
Press, 2001) 36.
4 Jailhouse informers are discussed at greater length, infra, but in general refer to the individuals
who, while in custody themselves, claim to receive confessions from accused persons before or during
their trials.
2001]
Distortingthe ProsecutionProcess
515
common law world." This article considers the links between those
implications and mandatory minimum sentences. The data concerning
mandatory minimum sentences is drawn primarily from the United States
where these sentences are most videly used. However, concerns about the
risks and harms associated with the use of informer evidence is widespread,
and the causes of wrongful convictions are similar in Canada and the
United Kingdom.6 The concern is that as Canada moves toward greater
reliance on mandatory minimum sentences, one of the costs of that choice
will be a heightened risk of wrongful convictions.
Much of the work of criminal investigation involves managing
informers. Although strictly speaking, the informer may simply be the
individual who reports a crime, the more usual sense of the term connotes
a person who provides information or testimony for benefit. These
informers may provide information to police as a routine practice, or the
informer may be an associate or accomplice of the accused who gains a
benefit by providing information or offering to testify against the key
suspect. In the case of drug offences and other crimes which take place in
secret, informer evidence is often central to investigations.7 Although the
use of informers to resolve criminal cases is recognized in law and
considered by many to be an essential part of law enforcement and
5
C.S. Zimmerman, "From the Jailhouse to the Courthouse: The Role of Informants in Wrongful
Convictions" in S. Wester elt & J. Humphrey, eds+, l
Cn t
Co
. 1c
17tcnJusticeFails(NewJers.y:
Rutgers University Press, 2001) 55. In the same volume, Barry Scheck sets out the details of the most
recent cases of wrongful conviction revealed to ha%e been caused by false jatihoue informer etdence
B. Scheck & P. Neufeld, "DNA and Innocence Scholar:hip" in S. Wester, cIt &14
J. Humphrc , eds.,
Wfrongly Conricted.IWhen Justice Fails(New Jersey: Rutgers University Pres-, 2601) 241.
6 D.L Martin, "The Police Role in Wrongful Co% ictons.,An International Cimparatw Study"
in S. Vesterwelt & J. Humphrey, eds., Wirongit Conttcic , ,I7xnJustice Fads (Ne, Jersey Rutgers
University Press, 2001) 77. This chapter is based on the research presented to The Honaurable Fred
Kaufman on 17 July 1997: -Wrongful Comictions: An International Comparatine Study" by D, L
Martin and the Association in Defence of the Wrongly Con icted. F Kaufman, T71e Rep of te
Commission on ProceedingsInvoaling Guy PaulMonn (Toronto: Publications Ontario, l33)+
7 In . v. Scott, [1990] 3 S.CR. 979 at 994, Mr. Justice Cory streszcd the impzrtance of informers
generally, and in the contest of drug investigations: "The %
alue of informers to p-alItc mvestiatons has
long been recognized. As long as crimes have been committed, certainly as long as they hase been
prosecuted, informers have played an important role in their mn estigation, It mayvell be true that svme
informers act for compensation or for self-serving purposes. Whatever their motitcs. the lantion of
informers is always precarious and their role is fraught with danger. .. The role of informers in
drug-related cases is particularly important and dangerous. Informers often provide the only means for
the police to gain some knowledge of the workings of drug trafficking orperations and netvorks."
OSGOODE HALL LAW JOURNAL
[VOL. 39, NOS. 2 & 3
investigation, 8 there are well-known risks associated with their use,
including the danger that the informer will lie and thus contribute to a
wrongful conviction. 9
Informer evidence is commonly seen in two different settings in the
criminal justice system: in the routine cases where sentences of
imprisonment are common such as drug offences, and in the more highprofile, difficult-to-solve cases of violence perpetrated by strangers. The
role of informers in resolving the often more high-profile cases of violence
perpetrated by strangers is developed more fully below, but in essence has
most of the same features as in routine cases. That is, the informer comes
forward or is developed to provide the evidence that secures a conviction
and a resolution of the crime.
In either case, it is significant that relatively few of the matters
processed by police are solved by the "sleuth" of fiction detecting and
locating an unknown assailant. Instead, most incidents that are defined as
crimes involve individuals well-known to police engaging in repeated
antisocial acts. t0 In the context of these routine investigations, police must
gather evidence from the participants. In order to obtain that evidence, it
is not uncommon for the threat to be made, directly or indirectly, that if
potential witnesses wish to avoid prosecution and imprisonment, they will
8 The use and
protection of those who inform police about the identity of criminals and
the
commission of crimes is well-known to the law. For example, the rule of "informer privilege" was
developed to protect the identity of citizens who assist in law enforcement and to encourage others to
do the same. In response to a challenge to the privilege brought under the Canadian Charter of Rights
and Freedoms, Part I of the ConstitutionAct, 1982, being Schedule B to the CanadaAct 1982 (U.K.),
1982, c. 11 [hereinafter Charter],Mr. Justice Cory stated in R. v. Hunter (1987), 57 CR (3d) I at 5 (Ont.
C.A.): "The rule against the non-disclosure of information which might identify an informer is one of
long standing. It developed from an acceptance of the importance of the role of informers in the
solution of crimes and the apprehension of criminals." It has also been the subject of considerable study
by criminologists. Clifford Zimmerman sets out the long history of its use, and the conventional view
that informers are a "vital and necessary element of the criminal justice system," in Zimmerman, supra
note 5 at 57.
The risks associated with informer testimony are well known. See e.g. G.L Wool,
"Police
Informants in Canada: The Law and Reality" (1985-86) 50 Sask. L. Rev. 249; J. Farris, "The
Confidential Informant: Management and Control" in M. Palmiotto, ed., CriticalIssues in Criminal
Investigation (Cincinnati: Anderson, 1988); and Zimmerman, supra note 5.
10 This reality was vividly portrayed in Richard Ericson's 1981 groundbreaking study of detective
work in Canada in R. Ericson, Making Crime:A Study of Detective Work (Toronto: University of Toronto
Press, 1981). Doreen Mcarnet demonstrated the same point in the United Kingdom in D. MeBarnet,
Conviction: Law, the State, and the Construction of Justice (London: MacMillan Press, 1981). Their
insights were demonstrated again by Michael McConville et al. in M. McConville, A. Sanders & R.
Leng, The Case for the Prosecution: Police Suspects and the Construction of Criminality (London:
Routledge, 1991).
20011
Distortingthe ProsecutionProcess
provide police vAth names and information. In this setting, reliably harsh
punishments that may be imposed on the non-cooperative or noninformative witness/suspect are a crucial tool for police in their efforts to
generate and manage informers. t
Prosecutors also need tools to encourage guilty pleas, as the
prosecution process cannot afford unlimited contested trials.t Indeed, the
risk of certain imprisonment, vhether because a mandatory minimum
sentence is involved or because of the nature of the offence, is almost as
helpful in inducing guilty pleas 3 as the denial of bail. 4 For the criminal
justice system as a whole, the fast, efficient resolution of cases and of
charges is essential to its legitimacy, and history suggests that anything that
promises to deliver this result is welcomed.
Mandatory minimum sentences serve all of these interests, and, at
the same time, heighten the risk that injustices will be done. No sentence
is as certainly harsh as the mandatory minimum penalty, and as the U.S.
literature demonstrates, no sentence is as demonstrably implicated in
1I Zimmerman, supra note 5.
12 The significance of the negotiated plea to the efficient management of the criminal proecvas
recognized thirty years ago in . Hogarth, Sentcncing as a Human Prcess (Toronto: Unitersity of
Toronto Press, 1971) and examined in detail in RV. Eric-On & P.M. Baranek, The Ordcnn3ofJusticc
A Study4 ofAccused PersonsasDepdantsin the Criminalhteess (Toronto: Uni;mvertyof Toronto Pres.s,
1932). In 1987, the Canadian Sentencing Commission recognized that plea bargains %wrecs:ential to
the operation of the criminal justice system, and broke the processdovn into the typ-scof negotiations
that take place. They identified "charge bargaining," "se nte nce bargaining," and "fact bargaining." They
also recommended abolition of mandatory minimum sentences, except for the sentence for murder.
Canadian Sentencing Commission, Sentencing RefomL' A Canadian,4rprcxcl (Ottat'a: Supply and
Ser-.ices, 1987) at 404. That recognition was affirmed again byThe Honourable G,A, Martin in Canada,
Report of the Attorney General'sAdrisor, Conmittce on Chayge Scrccnm,, Duclosure anJd lsatton
Discussion(Toronto: Queen's Printer, 1993) (Chair: G.A. Martin) [hercinafterMartin Reprl
13 This effect of mandatory minima has commanded considerable academic attention
in the
United States, where this sanction has become endemic, particularly in regard to drug cases; f.c eg.
Bibas, supra note 2 at Part It1, "The Real World of Guilty Pleas"; and D. Givclber, "Punishing
Protestations of Innocence: Denying Responsibility and Its Consequences" (2f0) 37 A.M Crim. L.R.
1363. However, the effect has been acknoviedged in Canada as well, mo.q paignantly by Madame
Justice L Ratushny as part of her review of the contictions ofv,omen for spausal homicide in light of
the "battered woman" defence. The pressure to plead guilty to manslaughter to avoid a mandatory life
sentence despite an available defence troubled her, and she made a number of recommendations to
reduce this pressure; see L Ratushny, SeXfDefence Ret ie,: FinalRep&rt (Ottava: Supply and Servces,
1997).
14
The significance of the bail decision has been understood at least since Martin Frtedland's 1965
study which first highlighted it; see M.L Friedland, Detentom Before Trial (Toronto: Unr-ersity of
Toronto Press, 1965). Studies which follo -ed bail reform reached the same conclusions. See eag, 3.
Hagan & C.P. Morden, -The Police Decision to Detain: A Study of Legal Labeling and Police
Deviance" in C. Shearing, ed., OrganizationalPolice Desiance(Toronto: Buttervworths, 1931) 9.
OSGOODE HALL LAW JOURNAL
[VOL. 39, NOS. 2 & 3
developing informers of various stripes or in encouraging guilty pleas."
Apart from the very serious questions about the propriety and efficacy of
informer use and plea bargaining, the concern is that these particular
devices of the criminal prosecution process are used and developed in ways
that have seriously harmful, albeit usually unintended, consequences,
As Elizabeth Sheehy establishes in regard to their impact on
defences, 6 mandatory minimum sentences induce significant distortions in
the criminal justice system. In the operation of these sentences in the
development of informers, and as a device for encouraging guilty pleas
generally, that distortion is also implicated in one of the most serious of
criminal justice failures-the conviction of an innocent person for a crime
that she or he did not commit. That distortion is examined in this short
article, first by examining the phenomenon of wrongful convictions
generally, and then by demonstrating the role that informer testimony has
played in contributing to them. The U.S. literature concerning the
relationship among informers, mandatory minimum sentences, and
wrongful convictions provides a backdrop against which examples of
informer testimony that have led to wrongful convictions in Canada and the
United Kingdom can be examined. The concern is that if informer
testimony is implicated in wrongful convictions in regimes with relatively
few mandatory minimum sentences, the U.S. evidence suggests that the risk
of wrongful convictions will increase if the trend toward greater use of
mandatory minimum sentences continues in Canada. That is, even more
informers willing to provide false evidence can be expected if there are
more opportunities for authorities to rely on the threat of a mandatory
minimum sentence in negotiating with them, and more persons serving or
facing mandatory minimum sentences can be expected to come forward
with false jailhouse confessions. The related concern is that more people
will plead guilty to crimes they did not commit, or for which they have a
defence, in order to avoid the risk of a mandatory minimum sentence.
The arguments sketched here are suggestive, not conclusive.
Although much has been learned in recent years about wrongful
convictions and about some of the ways that a sentencing regime that relies
heavily on mandatory minimum sentences may be harmful to ajust criminal
justice system, eliminating mandatory minimum sentences will not
eliminate wrongful convictions. However, in a jurisdiction like Canada,
15
Supra notes 2 and 5.
16 E. Sheehy, "Battered Women and Mandatory Minimum Sentences" (2001) 39 Osgoode Hall
L.J. 529.
20011
Distortingthe ProsecutionProcess
519
where choices are still to be made about when and whether to increase the
use of mandatory minimum sentences, the prospect of increasing the risk
of miscarriages of justice merits serious consideration. The arguments set
out in this brief article are meant to contribute to that debate.
II.
CAUSES OF WRONGFUL CONVICTION
When a crime is resolved through the conviction of an innocent
person, a double failure of justice has occurred-not only is an innocent
person wronged by the conviction, but the guilty person is thereby allowed
to go free. However, a wrongful conviction also provides the opportunity
to critically examine criminal justice processes and practices. When we
know that the outcome was wrong, we are able to retrace the steps that led
to it, even if that process requires rethinking practices that have been widely
followed and accepted. Cases of wrongful conviction from all over the
common law, world have been identified, remedied, and studied in recent
years, in part fueled by advances in DNA identification techniques.'" These
cases provide a virtual laboratory for examining the criminal justice process.
In the United States, the death penalty has driven most writing and
research although recent work has considered the problem more videly "
while in Britain, shock at the revelation that a series of IRA bombing cases
were in fact wrongful convictions generated first a Royal Commission and
then an independent agency for the review of cases."9 In Canada and
The analysis by the National Institute of Justice of tv,,nty-cight DNA exonerations v,as
enormously valuable in this regard. See E. Connors ciat. OCmtctcdtnJtris,E~oncratcd ;Scqnce,
Case Studies in the Use of DM4 Evidence to EstabIsh Innecence after Tral (Washuigton National
Institute of Justice, 1996). See also Scheck. supra note 5.
1
H.A. Bedau & M.L Radelet, "Miscarriages of Justice in Potentlall) Capital CaSs" J1937)49
Stan. L Rev. 21; R.C. Huff, A. Rattner & E. Sagarin, comzwtcd ButInnc;cnt: Iltonpfidcemtcnand
Public Policy (Thousand Oaks: Sage, 1996); M.L Radelet. HA Bedau. & CE. Putnam. In Spte of
Innocence(Boston: Northeastern University Press, 1992); M.L. Radelct, WS. Lofqutst & H A. Bedau.
"Prisoners Released from Death Rov.s since 1970 Because of Doubts About Their Guilt" (IM7) 13
Thomas Cooley L Rev. 907; and M.L. Rosenbaum. -Inctable Error Wrongful Nev York State
Homicide Convictions. 1965-19SS" (1990-91) XVIII (3) N.Y,U, Rev. L & Sec. Change C97.
19 Journalistic accounts of the IRA cases xcre instrumental in egoimg the %rongful coniCtons.
See eg. G. Conlon, Proved Innocent (London: Penguin Books. 19911; G Mcice & R. Franc),, Time
Bomb: IrishBombers. EnglishJustice. andthe GuilfordFour(London: Blkt ombuty, 1953 );and C. ,Mulhn.
Error of Judgment. The Truth About the Birmingqhan fBombinms (Dubhn: Poolbeg Press. 1N1). The
scandal led to The Royal Commission on CnmunalJustce.tLondon: The Home Office, 1Qg1) and the
formation of the Criminal Cases Review Commzs.ion (CCRC). "Press Release: CCRC Recetes 13,9
Applications in its First Year" (21 July 1993), online: <http,/,wi.'-:
cre gw uklatcstne v.s.html> (Date
accessed: 3 February 2002). See also A.AS. Zuekerman, "Miscarriagcs of Justice-A Root Treatment"
OSGOODE HALL LAW JOURNAL
[VOL. 39, NOS. 2 & 3
Australia, both journalistic accounts and Commissions of Inquiry have been
influential in generating a new awareness of the fallibility of the
prosecution process and informed critiques of current investigative and
prosecution practices.'
From this array of analyses, some well-founded propositions have
emerged. Wrongful convictions are not, as some have argued,2 the
inevitable errors of a human system and thus impossible to eliminate or
reduce. Rather, we are learning which cases are at greatest risk for an
incorrect outcome and why. They typically can be found in one of two
institutional contexts (which frequently overlap): the pressure to convict in
the highly charged and politicized environment generated by the highprofile case, and the willingness to prosecute and convict someone without
real scrutiny of the evidence engendered by the operation of stereotype and
bias in routine environments. High-profile cases where the innocent are
convicted receive the most media attention. However, wrongful convictions
have been identified in more routine cases, and common causes and factors
are being identified.2
Indeed, it is important to be aware that wrongful convictions are not
just a product of the high-profile, pressure-to-convict paradigm, so familiar
from the notorious cases of wrongful conviction. All miscarriages ofjustice
have their roots in the more common problem of institutional cynicism and
neglect-the cases of the same old suspects "obviously guilty" of the same
old offences investigated primarily by means of interrogation and informer
manipulation and resolved through negotiated guilty pleas. Many of the
known cases turn out to be neither aberrations nor difficult to prevent. In
the words of the commissioners reporting on the causes of the wrongful
conviction of Donald Marshall, Jr., the errors "could have and should have
[1992] Crim. LR. 323.
20 In Canada, see C. Karp & C. Rosner, When Justice Fails:The David Milgaard Stoy (Toronto:
McClelland and Stewart, 1991); K. Makir, Redrum the Innocent: The Guy PaulMorin Stoty (Toronto:
Penguin, 1998); A.T. Hickman, L Poitras, & G. Evans, Royal Commission on the DonaldMarshall,Jr.
Prosecution(Halifax: The Commission, 1989); Kaufman, supra note 6; Martin, supra note 6; and D.L.
Martin, "Unredressed Wrong: The Extradition of Leonard Peltier from Canada" in S. Boyd & R.
Menzies, eds., UsingPower:The CanadianExperience (Halifax: Fernwood Press, 2001) 214. In Australia,
see The Royal Commission of Inquiry into ChamberlainConvictions (Northern Territories: Australian
Government Printer, 1987); and J.R.T. Wood, The Royal Commission into the New South Wales Police
Service (Sydney: Government of New South Wales, 1997).
2 SJ.Markman & P.G. Cassell, "Protecting the Innocent: A Response to the Bcdau-Radclet
Study" (1988) 41 Stan. L Rev. 121; P. Cassell, "Protecting the Innocent from False Confessions and
Lost Confessions-And from Miranda" (1998) 88 J. Crim. L & Criminology 497.
22
Scheck, supra note 5.
2001]
Distortingthe ProsecutionProcess
been prevented if persons involved in the criminal justice system had
carried out their duties in a professional andlor competent manner," or
understood the risks in some practices.'
III. INFORMERS, GUILTY PLEAS, AND WRONGFUL
CONVICTIONS
Most cases of confirmed wrongful conviction are a product of the
pressure to resolve a crime, whether that pressure is externally generated
because of a high-profile crime, or is internally generated by resource
constraints and other institutional forces. In turn, most demonstrate one or
both of two common predisposing circumstances: the accused was a
marginalized outsider, andlor the case rested on suspect or inherently
unreliable evidence such as that provided by informers. In the context of
the argument that increased use of mandatory minimum sentences
increases the risk of vrongful convictions, this analysis first examines the
role of informer evidence generally and then looks at the use of jailhouse
informers through a discussion of some of the better known Canadian and
British cases of wrongful convictions. The conclusion is then drawn, just jas
has been the case in thd United States, that Canada can expect more
instances of wrongful conviction if the trend toward mandatory minimum
sentences continues. The related circumstance of the wrongful guilty plea
completes the discussion.
A.
Developing Informers
In high-profile cases, or in any case where a substantial pressure to
produce a resolution exists, that pressure generates a "convict at any cost"
climate. If it is a case involving unknovn assailants, informer evidence
assumes great significance and poses considerable risks. This was clearly the
context of the investigation of the IRA pub bombing cases in England in the
1970s. Popular books,24 a very popular film (In the Name of the Father),and
a Royal Commission,' amongst others, have examined these cases, and the
facts are today relatively well known. Scores of people died when the IRA
planted bombs in pubs frequented by off-duty British soldiers-a terror
tactic that provoked extraordinary public fear and anger. Three cities vere
23 Hickman, supra note 20, vol. Iat 275.
24
McKee, supra note 19 and Mullin, supra note 19.
25 The Rqval Commission on CriminalJustice, supra note 19.
OSGOODE HALL LAW JOURNAL
[VOL. 39. NOS. 2 & 3
involved in what became three separate cases of wrongful conviction:
Guildford and Birmingham where bombs were detonated, and Manchester
where an entire family, the Maguires, were wrongly convicted of having
supplied the explosives.
These were also cases where informers facing the threat of harsh
punishment themselves offered names to satisfy their interrogators. Police
rounded up hundreds of young Irish men and women who had any
connection to the IRA, particularly those who were leaving England in the
days following the bombings. They subjected them to intense interrogation,
including threats that they would face imprisonment themselves, either for
the bombings, or under Britain's antiterrorism law, 26 questioning them for
names and information. The threat of charges and jail would disappear if
a name was given. Not surprisingly, names were given by the pressured
informers and suspects were identified. These in turn were brought in for
further investigation. The "Guildford Four," 27 the "Birmingham Six," 28 and
the "Maguire Seven,"" as they became known, were then themselves
subjected to lengthy, abusive interrogations until false confessions
composed in advance by the police were signed. Finally, police forensics
experts were convinced to offer misleading opinions about matters such as
gunshot residue tests. Not surprisingly, given this combination of evidence
and the climate of the times, all seventeen were convicted and spent almost
twenty years in prison before they were finally freed and exonerated. But
for the search for suspects through the abuse of informers, these innocent
people would not have been victims of a miscarriage of justice.
Part of the responsibility for these wrongful convictions has been
attributed to a justification for police misconduct dubbed "noble cause
corruption," a variant on the rationale that the "ends justify the means."
That is, that the noble end-the conviction of a person who police know is
guilty-justifies the use of corrupt means-in this instance, improper
pressure on informers. However, it is misleading to dub these practices
corruption, whether nobly caused or not, because to do so masks the reality
that seeking out, pressuring, and developing informers is standard police
practice. It is a practice that appears to be rooted in a misplaced faith in the
reliability of the confessional evidence that determined interrogation
26
Supra note 19.
27
McKee, supra note 19.
28 Mullin, supra note 19.
29
"The Crime of Being Irish: Uncomfortable Questions About the Finest Justice System in the
World" The Globe and Mail (15 March 1991) Al.
2001]
Distortingthe ProsecutionProcess
almost always produces, whether from informers or from those accused.,"
That misplaced faith, in turn, appears to be rooted in ignorance about the
role that the threat of harsh and certain punishment has on the individuals
who provide the evidence thus obtained. It is a practice used in Canada
where two of the three most famous Canadian cases ofwrongful conviction
(the cases of Donald Marshall, Jr. and David Milgaard) rest on false
informer/accomplice testimony, while the third (Guy Paul Morin) is an
example of the most egregious form of informer evidence-the so-called
jailhouse informer.
Donald Marshall, Jr. was an Aboriginal teenager known to police"
when he was wrongly convicted of murdering his friend, an AfricanCanadian youth named Sandy Seale. Police, with little to go on other than
bias, jumped to the conclusion that Donald Marshall, Jr. was the killer,
even though Marshall, wounded by the real killer, flagged down police to
get help for himself and his friend after they were attacked. Police wanted
to believe that Marshall was the killer and did not want to believe that a
middle-aged white man had in fact killed Seale and attacked Marshall. The
police did not bother to investigate the crime scene or to search for
independent witnesses. Instead, they pressured Marshall's teenaged
acquaintances, with threats of criminal charges and imprisonment, into
becoming informers against him. In a racially charged community, that was
all that was needed.3 2
David Milgaard was a drug-using teenaged hippie heading out to
Saskatoon with two of his friends when Gail Miller, a young nursing
assistant, was raped and murdered on a bitterly cold winter night. The highprofle case was investigated in the usual way through interrogations of all
the usual suspects, which in the 1970s in Saskatoon definitely included
drug-using teens. Milgaard was offered up to the police by one such youth
during his interrogation for another matter. With Milgaard named, police
fairly quickly built a case based on evidence extorted in a similar fashion
from his friends. It took twenty-three years of constant pressure and
reinvestigation from his mother Joyce, the New Jersey-based Centurion
Ministries, and others to finally unravel the conviction."3 Approximately six
years after his release from prison, DNA testing confirmed his innocence
-T Leo, supra note 3.
31 The officer in charge of the investigation. Sgt, Mclntyre, had ernenced pre~mus'run.mn
with Marshall. See Hickman, supra note 20.
3
2 Ibid.
33 Karp, .upra note 20.
OSGOODE HALL LAW JOURNAL
[VOL. 39, NOS. 2 & 3
and implicated another man. A serial rapist named Larry Fisher who had
been living just blocks away from the murder scene was convicted of Gail
Miller's murder in November 1999." While police had known about Fisher
and the seven similar rapes and knife attacks he had committed, they relied
instead on the dubious evidence they had generated from frightened
teenagers. A Commission of Inquiry into David Milgaard's wrongful
conviction is expected. 5
These are common situations for the generation of informer
evidence. That is, vulnerable individuals, faced with the threat that they will
themselves be charged and imprisoned, offer testimony against someone
else. The risks are inevitably as great, and arguably much higher, when the
threat is backed by the certainty of imprisonment guaranteed by a
conviction for an offence that carries a mandatory minimum sentence.
B.
JailhouseInformers
The dubious foundation for faith in informer and accomplice
evidence pales in comparison with the cases where the authorities rest their
cases on the evidence of jailhouse or in-custody informers. This evidence,
from a prisoner who claims to have received a confession to the crime from
the accused, while sharing a cell for example, and who agrees to testify in
exchange for some benefit, is inherently and intuitively unreliable.
Although this evidence may be offered in exchange for almost any benefit, 6
when the informer is serving a mandatory minimum term, such as a life
sentence, which in the United States may be without parole, it is literally
the only way out of jail. Despite the frailties caused by the motive to
fabricate these confessions, they are presented to prosecutors by police and
accepted by juries all over the world, where they have repeatedly caused
wrongful convictions. 37 This evidence has become notorious in the United
States, 38 but its use is not limited to jurisdictions distorted by a host of
mandatory minimum sentences. It is happening in Canada.
34D.Lett, "Ultimate Miscarriage" Winnipeg Free Press (25 February 1999)
A9.
35 Ibid.
36C.Sherrin, "Jailhouse Informants, Part I: Problems with their Use" (1998) 40 Crim. L.Q. 106;
and Zimmerman, supra note 5.
37
Zimmerman, ibid.
38 An entire chapter is devoted to jailhouse "snitches" in B. Scheck, P. Neufeld & J. Dwyer,
Actual Innocence: Five Days To Execution And Other Dispatches From The Wrongly Convicted (New
York: Doubleday, 2000).
20011
Distorthigthe ProsecutionProcess
The Ontario case of the wrongful conviction of Guy Paul Morin for
the rape and murder of his eight-year-old neighbour, Christine Jessop, is
the most well-known example, and is the case that has been instrumental
in generating reforms in Canada to limit this evidence. Morin's arrest was
not a product of informer evidence, but his conviction was. In investigating
the causes of Morin's wrongful conviction, Mr. Justice Fred Kaufman,
former Justice of the Quebec Court of Appeal, conducted an exhaustive
inquiry into the facts of the case and the systemic and other failings that led
to the wrongful conviction of an innocent man and the concomitant failure
to apprehend a child killer. 9 The arrest was based on a frail foundation of
suspicion of a weird neighbour and his ambiguous comments to police, and
suspect hair and fibre evidence found many months after the crime on the
deceased child's body. A conviction was highly unlikely on that evidence.
In fact, the conviction was only ultimately secured at a second trial because
of the skillful presentation by the Crown of Morin's alleged confession to
two jailhouse informers.
Mister Justice Kaufman conducted the most extensive investigation
of this type of informer evidence since the Los Angeles Grand Jury Report
(LAGJR) in 1990 exposed the extraordinary scope of the problem5 and
made a series of highly significant findings of fact and recommendations for
the stringent control of this type of evidence!' The LAGJR, together with
the testimony of well-known U.S. Attorney Martin Weinberg, highlighted
the aggravating role of mandatory life sentences in the production of
jailhouse informers. As a result, Mr. Justice Kaufman included a caution
about mandatory minimum sentences in his report. He said:
Iam mindful of the distinction to be dra-n bet-.ccn the Canadian clnence and thatcf Mr.
Weinberg, given the ystem described aboe [one driven by mandatory minimum scntences
and life sentences without parole .I agree %tthMr. VVeinberg that itisa sistem notorthy
of emulation
in Canada. It protides an almost irfesatible ncentste to
' innzate.
39 Kaufman, supra note 6. %ol.
1.
40
D. Dalton, Report of tleI99.90 LosAngeles County Grandkuy Im erten
Imnphrate
a fcIa,,
cf dhe lnaf enwnt
ofJailhouseInfomiers in the CrbiinalJusticeSystem (Ls Angeles: Los Angeles County Grand Jury.
1990).
Kaufman, supra note 6,vol. 1 at 403.
4
2bI.
at 585 [emphasis added).
OSGOODE HALL LAW JOURNAL
C.
[VOL. 39, NOS. 2 & 3
Wrongful Guilty Pleas
The relationship between wrongful guilty pleas and mandatory
minimum sentences is easier to map out, although more difficult to detect.
After conducting her review of the cases of women imprisoned for life for
partner homicide in circumstances that raised the possibility of self-defence,
Madame Justice Lynn Ratushny had this to say about mandatory minimum
sentences for murder:
I have seen, over the course of my Review, cases where the accused person faced irresistible
forces to plead guilty even though there was evidence that she acted in self defence. In some
cases, this evidence was very strong. These irresistible forces are the product of the Criminal
Code's mandatory minimum sentences for murder. A woman facing a murder charge risks
imposition of a mandatorysentence of life imprisonment with parole eligibility after between
10 and 25 years. By contrast, a woman who pleads guilty to manslaughter will generally
receive a sentence of between three and eight years with eligibility for full parole after
serving one-third of her sentence. This would obviously be a difficult choice for any person
accused of second-degree murder to make. 3
The pressure is just as great for any accused faced with any
mandatory minimum sentence. The recent scandal ofpolice corruption and
misconduct in the Los Angeles Police Ramparts Division uncovered, along
with the extreme corruption, a disturbing record of innocent men who
pleaded guilty to crimes they did not commit to avoid draconian mandatory
minimum sentences. As Samuel Pillsbury, a professor at Loyola Law
School, said in the Los Angeles Times:
It's something you never see on TV: the victims of a police conspiracy pleading guilty to false
charges. On TV, the wrongfully accused always proclaim their innocence to a jury. That's the
American way. Yet consistent with the general pattern of criminal cases in Los Angeles
today, most of the defendants whose convictions have recently been overturned because of
corruption in the police department's Rampart Division pleaded guilty.
The Rampart cases reveal a sorry truth about L.A. law: Using entirely lawful threats, the
state can make even the innocent plead guilty. At a recent press conference, Dist. Atty. Gil
Garcetti expressed his concern about this aspect of the Rampart scandal: "Itraises the
specter, obviously, that they pleaded guilty to something [even though] theywere telling their
lawyer, "I'm not guilty, I'm innocent." That raises a question for everyone in the criminal
justice system."
Ratushny, supra note 13 at
14.
Pillsbury, supranote
3.
20011
IV.
Distortitngthe ProsecutionProcess
CONCLUSION
The ideological functions of criminal prosecutions are enhanced by
preserving the myth that guilt or innocence is resolved through fair and
public trials where the facts are contested and the law is challenged. That
myth in turn rests on others: that the presumption of innocence actually
guides criminal justice determinations; that the accused "criminal" has
more rights than do crime victims; and that the criminal justice system is
soft on crime. The combination of the latter two myths in turn fuels
government response to demands for more harsh and determinate
sentences.4
The reality that lays bare the myth about the protections of due
process safeguarding convictions is something darker and more troubling.
Most cases in the criminal justice system involve targeted, racialized,
marginalized people who are lown to each other and known to the
system, and most of these cases are resolved through plea negotiations. It
is fewer than 10-20 per cent of all charges that actually proceed to a
contested trial,46 and of that percentage, a much smaller number involve
cases where factual guilt is at issue. Most of the litigated disputes concern
matters of justification, sich as self-defence or consent, or of intention or
state of mind, rather than a question concerning the identity of the
perpetrator, or whether a crime has been perpetrated at all. True "who
done it" or "what happened" crimes are relatively rare. However, these rare
cases command headlines and dominate politically motivated "law and
order" rhetoric. These are the cases that are used and reused to justify
draconian, short-sighted measures such as mandatory minimum sentences.
But these are also the cases that we get wrong. Even more errors will be
made as Canada blindly goes down the path toward more mandatory
minimum sentences, a path "not worthy of emulation in Canada."'' 7
45 D.L Martin, "Retribution Revisited: A Reconsideration of Feminist Criminal La Reform
Strategies" (1993) 36 Osgoode Hall LJ. 151. and see supra note 9.
46
According to P.H. Solomon, Jr., CriminalJustice Po!tzy From Res arch to Reform (Toronto:
Butterworths, 1933) at 37, in 19,3 in Canada, the guilty plea rate was ,0 per cent. In 201, Btbas cites
U.S. Department of Justice, Bureau of Justice Statistics inhis study of the pressures to plead criminal
cases to the effect that fewer than 4 per cent of adjudicated felony defendants have jury trials, and
another 5 per cent have bench (judge alone) trials. Ninety-one per cent plead guilty. These figures
exclude casesinwhich the prosecution was dropped, dismissed, or otheirv se terminated before %erdict.
See Bibas, supranote 2 at n. 9.
47
Kaufman, supra note 6 at 5S5.